Campaign Group Files FOIA Request For OPR Report On Torture Memos

8.1.10

On Thursday, members of the Robert Jackson Steering Committee (RJSC) filed a request under the Freedom of Information Act requesting the long-suppressed report from the Department of Justice’s Office of Professional Responsibility (OPR) regarding the conduct of President Bush’s top lawyers in the Office of Legal Counsel who authored memos purporting to authorize torture and aggressive war.

Founded in September 2008, the RJSC works to bring about the criminal prosecution of top government officials in the United States alleged to have committed war crimes. The committee was named in honor of US Supreme Court Justice Robert Jackson, who was the top US prosecutor of Nazi war criminals at Nuremberg. Originally chaired by Lawrence Velvel, the RJSC’s current members are David Swanson (chair), John Bonifaz, Kristina Borjesson, Shahid Buttar, Marjorie Cohn, Colleen Costello, Ben Davis, Charlotte Dennett, Valeria Gheorghiu, Jeanne Mirer, Chris Pyle, Elaine Scarry, Peter Weiss, Andy Worthington and Kevin Zeese (see here for further details).

The request, reproduced below along with a transmittal letter, asks for the OPR report that has long been promised by Attorney General Eric Holder, as well as an earlier OPR report completed during the last months of the Bush administration. The request also seeks the 10-page rebuttal of the 2008 report by then-Attorney General Michael Mukasey. Both the letter and the request were submitted to Marlene M. Wahowiak, the OPR’s Special Counsel for the Freedom of Information and Privacy Acts.

Charlotte Dennett, an attorney member of the RJSC and one of the authors of the FOIA request, said: “The time has come to squarely address the role of these lawyers. Did they create new laws redefining the crime of torture after American forces had already begun torturing prisoners? And if so, for what purpose and on whose orders? We cannot countenance further delays or accept a greatly watered-down version of the original report. We must know the facts and then decide whether President Obama’s Department of Justice is continuing the cover-up begun under his predecessor.”

Peter Weiss, another RJSC attorney member and author of the FOIA request, added: “We are not simply requesting that a long-promised report be released sooner rather than later. We are requesting transparency in the unprecedented procedure of letting the very subjects of a DOJ misconduct report propose changes to it. The current Chilcot Inquiry in England of the build-up to the 2003 invasion of Iraq has revealed an editing process in which the attorney general of that nation reversed his opinion that the war would be illegal. If a similar editing job has been performed on the original OPR report, the American public has a right to know it.”

David Swanson, Chair of the Robert Jackson Steering Committee who also worked on the FOIA request, said: “Much awaits this report. Bar associations have delayed disbarment. Congressional committees have delayed subpoenas and impeachments. The Department of Justice has delayed prosecutions. One of the lawyers under review, John Yoo, is facing a civil suit from one of the victims of his actions, Jose Padilla. If the Justice Department is refusing to release the report in order to deny the report to Padilla’s legal counsel, the public has a right to know.”

Justice Robert H. Jackson’s words in his opening statement as Chief Prosecutor at Nuremberg have special relevance to today: “The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power … [for they, too,] as Lord Chief Justice Coke put it to King James, [are] ‘under … the law.’ And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”

The FOIA Request

This is a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522, and is submitted on behalf of the Robert Jackson Steering Committee.

We request the following:

1. The long-overdue ethics report of the Office of Professional Responsibility (OPR) regarding the performance of Bush administration lawyers in the Office of Legal Counsel (OLC) from 2002-2007. The Attorney General last promised to release this report by the end of November 2009, and it still has not been released.

2. The first OPR ethics report on the performance of Bush administration lawyers in the OLC, completed in December 2008.

3. Former Attorney General Michael Mukasey’s 10-page rebuttal of the December 2008 report, referenced in the New York Times of May 6, 2009.

4. A copy of OPR regulations regarding settled procedure on conducting a misconduct investigation and producing a report.

5. A copy of any OPR regulations that allow the subjects of the investigation to a) read the final report, b) make changes to the report, and c) allow the Attorney General to rebut the report.

6. Copies of all written warnings from 2001 on from veteran members of the Survival, Evasion, Resistance and Escape (SERE) training program to the Department of Justice, including the OLC, stating that SERE methods of interrogation on detainees were ineffective in eliciting the truth and designed more to elicit false confessions.

7. Copies of all communications from military and national security lawyers and professionals to the Department of Justice, including the Office of Legal Counsel, objecting to the form of interrogation methods proposed by the CIA and adopted by the Bush White House and the OLC lawyers in 2002.

8. Given John Yoo’s statement on p. 15 of the New York Times Magazine of January 3, 2010, that “if there’s a conflict between the president and the Congress, then you have to pick one or the other,” we also request any documents shedding light on whom an OLC lawyer is supposed to “represent” in rendering a legal opinion: the President, Congress, the Constitution, or the entire framework of domestic and international law?

For purposes of FOIA fee assessment, we ask that our request be placed in the category of news media requester. A good number of our members are journalists, including two of the undersigned, and frequently write on the subject of the treatment of detainees. The information obtained from this request will be disseminated to the public.

Additionally, we request a waiver of all processing fees because the release of this information will contribute significantly to the public’s understanding of the activity and operations of the government.

The letter

Dear Attorney Wahowiak:

Included with this letter is a Freedom of Information Act request for production of the long-overdue ethics report of the Office of Professional Responsibility regarding the performance of Bush administration lawyers in the Office of Legal Counsel from 2002-2007.

You will see that we are also requesting the OPR report completed in December 2008, Attorney General Michael Mukasey’s rebuttal of that report, and a number of specific documents relating to unsolicited objections from interrogators and government attorneys regarding the torture program envisioned by the OLC attorneys. As we understand it, OPR is responsible for investigating allegations of misconduct by Department attorneys that relate, inter alia, to their authority to provide legal advice. The documents requested in the attached document relate to such misconduct; as such, they should not be exempted as either predecisional or postdecisional formulations of policy, but rather considered as evidence of how the OLC attorneys skewed their legal opinions to justify illegal torture techniques.

The Robert Jackson Steering Committee, founded in September 2008, works to bring about the criminal prosecution of top government officials in the United States whom there is probable cause to believe have committed war crimes. The committee was named in honor of former US Supreme Court Justice Robert Jackson, who in his opening statements as Chief Prosecutor of Nazi war criminals at Nuremberg, stated:

If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them. And we are not prepared to lay down the rule of criminal conduct against others which we would not be willing to have invoked against us. We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.

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[…] Both Charlotte and I are members of the Robert Jackson Steering Committee, which has just filed a FOIA request for the long-awaited internal Justice Report on the lawyers who compiled the notorious “torture […]

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington